Thoughts from a Paleo Conservative Mind

Hello Friends,

I'm Jamal Greene. I have a passion for politics, both domestic and international, and this blog is dedicated to that passion. In my blog I cover US politics, the Economy, matters of National Security, and International Relations. I am, as my title suggest, a Conservative, Classically Liberal. Think Goldwater, not Bush.
Progressives are trying to dramatically transform this country into something our Founders would not recognize as the America they sought to establish. I believe it is time for the citizens of this great nation to stand up to those who seek to encroach on our freedoms; its time to stand up and be heard. Be Silent No More.

Thursday, January 20, 2011

A Constitutional Conservative Case for Same Sex Unions

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

Ninth Amendment, US Constitution



“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”


Fourteenth Amendment. US Constitution


“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. “

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”



Article V, Sections 1 & 2. US Constitution




Last year I given the opportunity to participate in a town hall panel discussion on the Tea Party movement at a local university here in Pennsylvania. During a course of the two hours long dialogue with students we discuss a variety of issues, from the current economic crisis to the coming entitlement crisis; there were even questions on Globalization and the War on Terrorism. So needless to say, we had a thorough dialogue. After the town hall several students from the university stopped me to further probe my thoughts on issues ranging from the legalization of marijuana to the deficiencies of our criminal justice system. During the discussion we moved from the topic of incarnation rates to social issues, and it was at this point that I gave an answer that shocked the young undergrads. I told them that while I am Pro-life, based on current medical science, I’m also “Pro” equal rights and protections for gay and lesbian Americans. One of the students said he was stunned by my answer and that he thought all conservatives were anti-gay. I assured him he had been misinformed and that many conservatives and most libertarians, are actually proponents of equal rights for the gay community. Polls show increasingly that young conservatives are more prone to support same sex unions than their parents’ generation; as time progresses that number will only increase. If all men are created Equal, and Liberty and Justice is truly for all, why then are so many Americans denied their right to individual liberty when choosing who to share their life with?



In 1967 a similar argument was debated and litigated in the country. During that time the debate was as to whether or not a man and woman, of different races, could legally marry. Then, as it does today, the US Constitution stands on the side of individual rights, not elected officials interpretation of ancient Hebrew scripture. As Americans we must remember the US Constitution was not adopted to restrict the natural and individual rights of Americans; it was ordained to empower, and yet restrain, a federal government. The Freedom to choose is one of the things that makes America the nation we have all come to love, a truly Exceptional Nation. Restricting individual choice and freedom, particularly with something as personal as marriage, is counter to the founding principles of this nation, regardless to whether the issue is of interracial or same sex unions. The Founder of this nation believed in Lock's theory of Natural Rights. Natural rights, the unalienable rights; rights that are vested in our very humanity and confirmed by the simple fact that we own ourselves. As owners of our own bodies and minds, we have the right, under both natural and constitutional law, to enter into any contract or association of our choosing as long as both parties willingly consent. In a amicus brief filed in the recent Virgina suit against the Obama Administration's unlawful healthcare act, a "friend of the court" argued that the federal government did not possess the lawful power to force individuals to enter into contracts against their will. The argument was sound because here in United States of America we have freedom of contract. The government cannot force an individual into a contract and neither can it deny individuals the right to willing enter into a contract of their own accord.



In June 1958, two residents of Virginia, Richard Loving, a white man and Mildred Jeter, a black woman, were married in the District of Columbia because the laws of Virginia, specifically the Racial Integrity Act, outlawed marriage between individuals of different races. Shortly after their marriage, the Loving’s returned to Virginia and established a life for themselves in Caroline County. Shortly thereafter the local police received word that the two were a couple and immediately set out to arrest them for violating state law forbidding unions ( contracts of marriage) between interracial couples. The police raided the Loving's home in the middle of the night and arrested them. The Loving’s were charged with violating Virginia's ban on interracial marriages. On January 6, 1959, the Loving’s plead guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Loving’s leave the State and not return to Virginia together for 25 years. The Judge wrote in his opinion: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." Does it strike anyone as odd that the Bible and God were routinely invoked doing the debate over interracial marriage, just as they are today in the debate over same sex unions? Later, in 1965, a three judge district court allowed the Loving’s to present their case to the state’s Supreme Court of Appeals, but in time it came as a setback to their cause as the Appeal’s Court upheld both the lower court’s ruling and criminal convictions.


In upholding the constitutionality of these provisions, the Virginia Court of Appeals referred to its own 1955 decision in Naim v. Naim as its basis for supporting the lower court’s decision. In the Naim case, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride. The State of Virginia argued that the meaning of the Equal Protection Clause was that state penal laws containing an interracial element as part of the definition of the offense must apply equally to whites and blacks in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statues punished equally both the white and the black participants in an interracial marriage, these laws, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. In order words, the High Court of Virginia found that the fourteenth amendment's Equal protection clause did not apply to interracial couples; thus denying them the right to marry. They interpreted the clause to mean that as long as both parties, the black woman and white man, were giving "equal" treatment, meaning penalties, under the law, that they were afforded their rights under the Constitution. However, the US Supreme Court rejected the ruling of the Virginia Appeals court and ruled UNANIMOUSLY Virginia's racist laws were in violation of the Fourteenth Amendment and the Equal Protection Clause. The majority opinion stated: marriage is one of the "basic civil rights of man, fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State".



In light of the Loving case, the question that must be asked is whether or not states, and the Federal government, are in violation of the 14th Amendment, 9th Amendment (natural law theory), the Good Faith and Credit Clause,and the Equal Protection Clause, when denying same sex couples the right to marry? Does DOMA, the Defense of Marriage Act, signed into law by Clinton to prevent same sex unions performed in one state from being recognized in another, violate the US constitution? In my opinion it does. Its my belief that when, not if, a case goes before the US Supreme Court challenging the constitutionality of state and federal bans on same sex unions, the high court will have no choice, under the US constitution, but to find such laws unconstitutional. Citizens of one state cannot be denied the basic rights and privileges afforded to citizens of another state simply because some individuals may not like it. Some opponents of same sex marriage may point to citizen’s objection to same sex unions in certain states as justification for denying some the most basic of fundamental rights. Regardless of state ballot initiatives, like Prop 8 in California, the founder's founded a republic, not a pure democracy; and in a constitutional republic a majority cannot vote away the natural and unalienable rights of a minority. I’d point out that during the 1950s and 60s, when segregation was the law of the land in many states, a lot of American’s opposed desegregation.

The Warren court rightfully found, in the 1967's landmark case, that marriage is one of the most basic civil rights, a right that is fundamental to man's very existence. According to the US Supreme Court, the fourteenth amendment "requires freedom of choice in the case of marriage or legally recognized unions. The freedom to choose who we enter into contract and covenant with, regardless of public opinion, is a civil right, constitutional right, and most importantly a natural right that we all are imbued with.